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State v. Ferguson2/27/2003
JUDGMENT: Judgment affirmed in part and reversed in part and cause remanded.
. Defendant-appellant Vaughn S. Ferguson ("Ferguson") brings this appeal from the judgment of the Court of Common Pleas of Union County finding him guilty of carrying a concealed weapon.
. On May 21, 2001, Ferguson was stopped for traffic violations and subsequently arrested for driving under the influence . Ferguson had a passenger with him when he was stopped. Officer Jason Nichols ("Nichols") handcuffed Ferguson, performed a cursory pat down search, and placed Ferguson in the rear of the cruiser. Nichols then went to assist Officer Roger Wessell ("Wessell"), who was involved in a heated discussion with the passenger. While assisting Wessell, Nichols observed Ferguson moving around in the cruiser, but was unable to determine what Ferguson was doing. Once finished with the passenger, Nichols returned to the cruiser, removed Ferguson from the back seat and proceeded to perform a thorough pat down search. Nichols found nothing substantial on Ferguson. Nichols then took Ferguson to the Marysville Police Department.
. At the station, a search was conducted of Ferguson's pockets. Two .22 short rounds were found in Ferguson's pants pocket. Since Ferguson was unable to post bond, Nichols transporter Ferguson to the Tri-County Jail. Nichols observed Ferguson lying on the backseat of the cruiser. Once at the jail, Nichols removed the defendant from the cruiser and locked it. Nichols then left the prisoner at the jail and returned to the cruiser. Having observed Ferguson's unusual behavior, Nichols decided to search his cruiser before leaving. Wedged behind the rear seat was a .22 caliber derringer. Ferguson was then indicted on one count of carrying a concealed weapon with a finding of a prior conviction making it a felony of the fourth degree.
. On June 25, 2002, the case was tried before a jury. The jury found Ferguson guilty as charged and found that he had previously been convicted of carrying a concealed weapon. The trial court sentenced Ferguson to 17 months in prison, to be served consecutively to any sentence to be imposed in Montgomery County, and granted no credit for time served. It is from this judgment that Ferguson raises the following assignments of error.
. "It was error for the lower court to deny [Ferguson's] motion for dismissal since the CCW statute relied upon for prosecution by the state of Ohio is unconstitutional.
. "The court erred by not granting a Rule 29 dismissal on the basis that the substantial weight of the evidence indicated that the firearm was not operable or readily made operable by [Ferguson] at the time he possessed it.
. "The finding by the jury that the gun was operable or readily made operable was against the manifest weight of the evidence.
. "It was against the manifest weight of the evidence for the jury to find there was a prior CCW conviction.
. "The court erred by ordering [Ferguson's] sentence to be consecutive to an unimposed sentence not yet ordered by another jurisdiction and failed to give jail time credit."
. In the first assignment of error, Ferguson claims that the statute prohibiting the carrying of a concealed weapon is unconstitutional. In support of this argument, Ferguson cites Klein v. Leis (2002), 146 Ohio App.3d 526, 2002-Ohio-1634, 767 N.E.2d 286, which found Ohio's carrying concealed weapons statute to be unconstitutional. However, the Supreme Court of Ohio has previously held that the statute is constitutional.
. "In State v. Neito * * *, the court found to be constitutional a statute prohibiting the carrying of c
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